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Tuesday, August 28, 2012

I can't speak for all attorneys, but this particular attorney is a little bit of a control freak. I want things done right, so it's better when I do them rather than having to trust others not to mess up. In the world of criminal appellate law, though, it's not really possible to retain control in all things. Lots of defendants have issues similar to the issues my clients have. But I don't get to represent them all. I don't get to write all the briefs and I don't get to conduct all the oral arguments to the courts.

Oh, how I wish I did. I wish I could craft all the motions filed to the district courts. I wish I could answer all of the questions asked by the appellate court judges. (And, let's be honest, I wish I could write all the opinions!)

I'm sure I shouldn't do it all. I'm sure other people really do answer questions better than I do or add nuance to an argument I didn't think of. But there's nothing more painful than sitting powerlessly in the audience while someone else scuttles your argument. I'd much rather screw it up myself than have someone else lose my case before I even get the chance to win it.

Monday, August 27, 2012

Someone seriously needs to get all the Republican men alone in a room and explain to them that they should stop talking about rape and abortion. They need to just stop. They're not making it better. We all pretty much get where they stand. So they should shut the hell up.

Honestly, the Paul Ryan remarks making the rounds today don't bother me. I get what he's saying and I think it's stretching it to suggest from that one remark that he doesn't take rape seriously. But he should know that his remarks on the subject will be picked apart and in light of his sponsorship of the "forcible" rape bill, most people on my side of the aisle won't be willing to give him the benefit of the doubt.

Now Tom Smith, Senate candidate from Pennsylvania, has stepped in it, too. I'm not entirely clear on exactly what he said from this story. But here's a transcript in which, yep, he sure said a child out of wedlock is a similar situation to rape. From the father's perspective, that is. I've known my dad for about 39 years now and I feel quite comfortable saying he would most definitely not feel the same about me being raped as he would about me having a child out of wedlock. He would be quite fine with me, a home-owning professional, having a kid without being married. He would absolutely not be fine with me being raped.

I think the real problem here might be that Mr. Smith (and a few other of these men) doesn't see the difference between consensual sex outside of marriage and rape because they're both not the way his god intended sex to be or something. But I sure as heck hope he wouldn't rather his daughter be a poor victim than a willing slut. I would like to believe he can see the difference between a woman choosing to have sex and a woman having that choice taken from her. But I don't have a whole lot of faith in this guy getting anything that has to do with women and choice.

I would hope that from here on out, the men of the Republican party have learned their lesson. You don't have to understand what's wrong with what you say, guys. You don't have to try to further explain your position. You're not gonna get it and we're not gonna agree. So just stop. Because I'm tired of hearing about it.

Sunday, August 26, 2012

Do you like to watch "true crime" made-for-tv movies? Love seeing Dean Cain play Scott Peterson? Rob Lowe transform himself as that other (alleged) murdering Peterson? Can't get enough of the Amanda Knox movie? I'll admit I watch 'em. I have an unhealthy tendency to watch Lifetime Movie Network. 'Cause I'm classy like that.

If you, like me, watch these movies, there's one thing I beg of you to keep in mind: they're fiction. FICTION! These movies always include scenes that they can't possibly have any support for, moments when the defendant is alone or talking with the victim. For dramatic purposes, one understands why the movie makers want to include these scenes. As voyeurs, we want to imagine what really happened and picture the victim's thoughts about the defendant, see if we can glean some evidence that the victim knew the defendant might hurt her. (The victims are almost always women.)

But these scenes are just flat made up. This evening, while anxiously awaiting the start of the very important Sporting KC-New York Red Bulls match-up (Go Sporting!*), I watched a little bit of Lifetime's newest addition to their collection, "Fatal Honeymoon." All about the Alabama man accused of murdering his wife while scuba diving on his honeymoon. Interestingly, the movie showed many scenes between the man and his wife prior to the fateful dive. But I find it hard to believe that he participated in the making of this movie, so how on earth did they have any source for the conversations between the couple, especially the night before the dive when she most likely didn't have a chance to relate that conversation to a sister or girlfriend before she died? The simple answer is they didn't. They just imagined something.

I watched the entire Amanda Knox movie as well. (Marcia Gay Harden, what were you thinking participating in such trash?!) As you might recall, that is a case I have spent a fair amount of time researching. Clearly the people who wrote that movie's script did not. That movie played fast and loose with the facts even by the standards of those who swore Amanda was guilty. Anyone whose only exposure to that case is through the movie knows nothing about the facts of the case. And yet, based on reviews online, it seems clear that people feel comfortable judging her guilt or innocence based on this movie, with seemingly no realization of just how fictionalized an account it was.

I have to assume that other Lifetime-style true crime movies are equally as shoddily-researched. From what I've seen, they value melodrama and suspicion over a faithful rendition of known facts. These movies would lack an awful lot of punch if the directors felt limited only to things that could be conclusively proven. Their purpose is entertainment, not information. Goodness knows I find them highly entertaining. But I don't fall into the trap of thinking I know anything about the cases they feature. I can only hope other viewers get this as well. And that no one ever tries to make a movie about one of my cases...

*5 minutes in, Sporting KC scored a goal to take a lead. After nervously waiting for this match that will say a lot about who comes out on top in the Eastern Conference, I can relax quite a bit with that fast start! Now keep it up, boys!

All's well that ends well, right? If so, then the sad story of Mark Sanford's fall from grace is instead a happy story of love triumphant. Because he is now engaged to his Argentinian love. The one he went to visit when he went AWOL from the Governor's mansion and told people he was hiking the Appalachian Trail.

I think that's great. Yes, it would have been nice if he could have found his happy ending without publicly humiliating his wife and abandoning his job for days. But we've all been fools for love, haven't we? And it would seem that in his case, it really was true love. Somehow, that makes his ridiculous actions a little less ridiculous to me.

To the happy couple, I say only congratulations and good luck. To the former governor, though, might I add I still fundamentally disagree with you on just about every policy point, so I'm ok with you staying out of office.

Wednesday, August 22, 2012

It's probably good that my particular type of criminal defense work doesn't put me into contact with cops. I don't think it would go well if I had to question them on the stand or be in the room while they interrogate my client or passed them in the hall.

Every time I have to watch a deposition recording or read testimony or, worst of all, watch a client interrogation, it makes me crazy. Heck, even the interviews of non-clients infuriate me. They just can't help themselves from lying or power-tripping or just being obnoxious. If I could, I would jump right through my computer into that room where the cop is talking to some unsuspecting person and call them on their bullshit.

But that technology doesn't exist yet. And it's probably a good thing. Because much as it infuriates me, it's probably not in my clients' best interests for me to actually speak the truth to cops. It would just feel really good.

Tuesday, August 21, 2012

You DID do something ethically and morally wrong. You made an outrageous claim about the biology of conception that has absolutely no scientific support. I view that as unethical. In so doing, you implied that any woman who did get pregnant as a result of rape must not have legitimately been raped. Like maybe they didn't fight hard enough. Or maybe they enjoyed it just a little. I view that as immoral.

I'm not saying you should get out of the race. Heck, I want McCaskill to win, and right now it might well be that you staying in is the best thing for her. I'm just saying it would be nice if you could view this as a teaching moment. Recognizing that you are the one who needs to be taught something. About your views on women and sex. About your unfortunate apparent willingness to ignore science in favor of your pre-set political and religious views. But why bother with any of that when you'd just rather yell at that darn liberal media. Yep, you've definitely chosen the more productive path.

Monday, August 20, 2012

Kevin Yoder is (was pre-redistricting, that is) my Congressman. I even know him a little. I've been to his house. I've attended his birthday party. He's not my cup of tea policy-wise, but ever since he made it to Congress in 2010, I have a little bit enjoyed the fact that I can say I personally know my Congressman. As if it somehow gives me greater access to him or something.

So it fills my heart with pride to realize today that you all, also, now know Kevin Yoder. Because, yes, ladies and gentlemen, the member of Congress who went skinny-dipping in the Sea of Galilee is my member of Congress.

This is probably the first time since he's been in Congress that he has made the news and I haven't cringed. In fact, I think I like him a little bit more now. I frankly don't see what the big deal is. At the urging of the waiters, who jumped in first, a group from Congress followed suit and took a quick dip in the sea. Some of them stripped down a little but only Kevin went all the way. I kinda respect that.

Apparently one concern is that it was disrespectful, which seems an invalid concern if the waiters jumped in first and if it's something that is regularly done at this particular restaurant. It wasn't a trip funded by US taxpayers. And even if it was, well, don't representatives from Congress get to have a little free time while on a trip? This was at the end of the evening and didn't interrupt any work. Then comes my favorite complaint: that Kevin stripped all the way down in front of *gasp* women! I bet I don't have to tell you what I think about that. But just in case, let me say that I have no problem with nudity, I don't assume it's sexual, and I don't assume it's improper or immoral to be naked around people of the opposite sex. There's nothing wrong with being naked. Frankly, I find the mumblings that it was inappropriate to be naked around women to be puritanical and demonstrating a concern for the propriety of innocent women that I find sexist. Our eyes won't burn and our reputations won't be (or at least shouldn't be) besmirched by being around naked men.

And if it's somehow a religious objection to getting naked in the spot where Jesus allegedly walked on water, well, how is getting that much closer to the "holy" water a bad thing? I seem to recall that Charlotte had to do her Jewish conversion ceremony in the buff. Something about coming out the pool a completely clean, new person. So maybe Kevin was just so moved by the spirit that he wanted to come out totally cleansed.

Or maybe he was just having a fun, light-hearted moment and isn't as hung up on nudity as so many people are.

Either way, I'm just fine with what he did and think an investigation and brouhaha are totally unnecessary. I'm not saying he's gonna get my vote this November (I mean, even if I could still vote for him) because I hate, hate, hate the way he votes. But he definitely retains the top spot of members of Congress I'd have a beer with. And maybe we'd have a good laugh that he made front page news for something so utterly un-newsworthy.

Sunday, August 19, 2012

I just found one of the most clueless, obtuse Newt Gingrich quotes ever. Said Gingrich of the Nixon impeachment proceedings: “That, of course, wasn’t partisan because the left liked it.” (Per the Kansas City Star.)

Oh, Newt. To borrow a line from John McEnroe, "You cannot be serious!"

This is my biggest beef with the current state of politics. (And I do think the GOP is worse about this, if only because the GOP is
better about presenting a unified message and dominating the terms of debate,
which is something the Dems need to do a better job of fighting against.) It seems like the knee-jerk reaction is to label absolutely everything as partisan. Every action. Every criticism of any policy proposal or comment by the other side. Everything. But it's just not so. Not everything is partisan.

And of all the big political things that have happened in the past 50 years, the impeachment proceedings against Richard Nixon have to be about the least partisan of them all. Nixon's own party leaders assured him the Senate would convict him if it got to an impeachment trial. He had, at most, 15 votes in his favor. Meaning 85 Senators would have voted to convict, which is a pretty overwhelmingly bi-partisan majority.

Newt trying to claim that Nixon's impeachment proceedings were at all partisan is what's partisan.

I really hope we are officially done with this man now that his presidential bid has failed.

Wednesday, August 15, 2012

Have you seen Nike's new t-shirt? It's meant to be a celebration of the US Olympic team, specifically the women, who dominated the final medal count. If US women were their own nation, they would have come in third in the final count, that's how awesome our women were. So Nike has issued a t-shirt to honor that golden effort. But it's a shirt that is only available in women's sizes. (Totally off topic: but I hope whoever came up with the idea of women's cut t-shirts is now incredibly wealthy and sipping umbrella-decorated cocktails on a beach somewhere.)

Here's the kicker about the shirt: the slogan is "Gold Digging." So is that t-shirt sexist? Because calling a woman a gold-digger is pretty darn insulting and linking being a gold-digger with being a woman makes the gender issue pretty obvious. Or is it a fun, tongue-in-cheek nod to the nation's female Olympians? Saying, in effect, this is how awesome women dig for gold.

As a word play nerd, I have to admit I think this shirt is kinda funny. As with a certain "B" word, I am all for reclaiming negative, insult words and taking the sting out of them at least. Or at best, turning them into empowering words. For that reason, the Meredith Brooks song is on my 3-song life soundtrack. Just like Nike might be suggesting that women should take that pejorative term and turn it into something that we can be proud to be called.

The linked Yahoo! article suggests that there has been some internet noise about this, but this article has been the only thing I've seen. For their part, Nike has responded by saying, "The t-shirt uses a phrase in an ironic way that is relevant given it
was released just as the world focused on the success of female
athletes.”

In the end, I think I'm just not that bothered by this t-shirt. I don't like that term (and I HATE the song). I especially don't like the idea that any women have to somehow satisfy outsiders about their motives for being in relationships or getting married. Generally, it bothers me how willing so many people are to assume people have ulterior motives or negative agendas and I generally see viewing people as gold-diggers as part of that greater problem. So, since I'm a believer in trusting people until they prove I shouldn't and Nike has a good history of supporting women and encouraging them to embrace sports and fitness, I believe Nike really was going for the winking, tongue-in-cheek reading. It's the sort of thing I would do, too. Though I have the luxury of not trying to fit my pithy saying on a t-shirt. Had I come up with the idea to include this twist on gold-digging when I wrote about the US women in the Olympics, I would have had enough room to make my post title, "This is how real women dig for gold" or something.

Tuesday, August 14, 2012

A man on a motorcycle hits a 4 year-old girl crossing the street. Perhaps the girl darted out into the street (his version and, frankly, something small children do). Or perhaps she was carefully crossing the street with a teenage cousin (her family's version and, frankly, something any person who hit a small child would want desperately to believe wasn't true). The child's father, understandably distraught at having witnessed the accident, comes running and gets into a confrontation with the motorcycle rider. Which prompts the rider to pull out his gun and shoot the father, killing him.

Here's my question: does it make the tiniest bit of difference that the motorcycle driver is an off-duty, out-of-uniform cop? Because I'm not sold on the idea that it does. "Authorities" say he identified himself as a cop before pulling his gun. An eyewitness says otherwise. But so what? The fact that the guy on the bike is a cop doesn't make it ok that he hit the little girl and undoubtedly wouldn't have affected the father's reaction. Whether the guy was a cop or not, it wasn't ok for the father to attack him. While many people can understand that reaction, it wasn't acceptable. The father should have stopped attacking the driver, regardless of the driver's profession. From the father's perspective, the fact that the man who hit his daughter was a cop is irrelevant.

Now, from the cop's side of things, maybe it does make a difference. The difference it should make is that he should be better trained than most to deflect an attack and hold his cool in a tense situation. I just want to believe a peace officer would be more likely than most to be able to diffuse the situation and restore, ahem, peace. From the brief stories that I've seen, there's not enough information to judge this cop's actions, whether he really could have protected himself by using something less than deadly force.

I don't quite understand, though, why these nameless "authorities" are so insistent that the officer did identify himself. This is where I'm a little troubled. Because I would hate for officers to think (and act) as though being police officers shields them in all situations, even when they're off-duty and in the wrong. (Not to say we know whether this particular cop was in the wrong, because we really don't know much yet, but speaking generally.) I would hate to think that police officers think it should make a difference that the driver-turned-shooter was a cop. I would hate to think that cops think the mere fact of being cops and identifying themselves as such buys them greater leeway to pull out guns and shoot people in non-work-related confrontations. And I would hate to think that cops think any civilian being pummeled on the street by a distraught dad has less right to defend himself than a cop would.

So to sum up. From what little information I have at this point about this story, I don't think it much matters that the man who hit the girl and then shot the dad is a cop. But I think it might matter a great deal if people, especially if cops, think it matters.

Last week, I told you about the lesbian custody case that put an Amish-Mennonite minister in the path of a felony trial. Well, today Kenneth Miller was found guilty of aiding in international parental kidnapping. The minister's defense was, from what I can tell, that he didn't know the woman he helped did not have full custody of her daughter when he took the mother and child to the airport in Toronto. Either that didn't matter to the jury (I don't know the specifics of the evidence or the elements of the offense) or they just didn't believe it.

I don't know whether his conviction is just or not. All I do know is that he shouldn't have thought that spiriting a child out of the country to keep her away from a gay parent was necessary or just or right. Whether he knew about the status of the custody dispute or even that there was a custody dispute, if he knew (which it seems he did) that the child was being taken out of the country for this reason, he should be ashamed of himself.

Saturday, August 11, 2012

Want to know the one, simplistic thought I have had running through my head throughout these Olympic games? Yay Title IX!

Because the US is nowdominating the medal count (sports bring out my jingoism...) and it must be recognized that the women had an awful lot to do with that.

Basketball. Soccer. Water polo. Gymnastics. Our only real stumble in team sports was in volleyball, where we had to settle for silver. Our swimmers dominated the relays and won individual race after individual race. Much like our track team. We were assured a gold (and silver) in beach volleyball before the first spike in that final. And tennis. Let's not forget sweeping the gold medals in women's tennis events.

I get so frustrated when people rail about schools wasting money and time on sports. Sports are such a good thing for kids to be involved in. They're good for health, physical and mental. They're good for self-confidence and teamwork and discipline. For girls, the statistics are compelling. Girls who participate in sports in school have lower rates of teen pregnancy and higher rates of college matriculation. Why on earth shouldn't we support that?

And, hey, when we encourage kids to get involved in sports, especially girls it would seem, we come away from the Olympics with the most medals of any country, so supporting sports is the patriotic thing to do. I personally thought it was amazing to watch all those women taking the top spot on the medals stand with their teammates, holding hands. I hope it inspires another generation of young girls to pursue excellence in sports just as the first wave of Title IX athletes inspired this generation.

Title IX helped make it possible for girls to pursue sports even when people weren't sure they should, or even wanted to. I think it's awesome that 40 years later, we as a nation have produced the finest crop of female athletes the world has ever seen.

Tuesday, August 7, 2012

Oh, this story has so many potential angles. It starts as a happy love story, as two women commit their lives to each other in a Vermont civil union and then start a family together. With the help of IVF, one of the women gives birth to a child they both will raise. Then it turns to a story of heartbreak as the relationship breaks down. But then it turns into an ugly war story as the women engage in a nasty custody battle that covers two states and spreads to Central America.

Now the case includes international kidnapping, aiding and abetting, claims of religious liberty versus arguments of gay rights, choice of law, and I wouldn't mind throwing in a discussion of Full Faith and Credit.

Some time after giving birth to the couple's child, Lisa Miller found god and renounced homosexuality. She took the child and moved to Virginia, forcing her former partner, Janet Jenkins, to fight in court for access to the child they were both responsible for bringing in to the world. By turning this into a nasty, two state custody battle, these women have proven one thing: same-sex relationships really aren't any different from hetero ones.

After years of legal battles in Vermont and Virginia, Jenkins was granted visitation rights. Miller, though, stopped allowing Jenkins access to the child and went into hiding. Eventually, Miller took the girl through Canada to Nicaragua. Now, a minister accused of helping Miller get the child out of the country is on trial for interference with parental rights. The minister and other members of the Beachy Amish Mennonite sect have allegedly sheltered Miller and helped her keep her child away from Jenkins. Simply because Jenkins is a lesbian and homosexuality is a sin. And I guess somehow it infringes on Miller's religious liberty to expect her to co-parent with a lesbian. Even though her desire to co-parent with a lesbian led to the child being born in the first place.

There are lots of ways to go with this story. But right now, the only thing I can focus on is this: What the hell is the matter with these people? Where on earth did they get the idea that the Christian thing to do is keep a child away from a parent? That it's better to remove a child from the country and force her to live in hiding than to let her be loved?

This is why so many of us responded the way we did to the Chick-fil-A flap. (To be fair, I hadn't gone there in years because I was aware of the company's contributions to causes I disagreed with. Just as I haven't shopped at Hobby Lobby in years. Or eaten Domino's since college.) It's why so many of us fight so hard and get so animated about the issue of gay equality. Because there are people, sadly a lot of people, who think it's a legitimate, respectable view that a straight parent is better than a gay one. Even that gay parents shouldn't get to be parents. Or that a straight parent should do whatever necessary to keep a child away from the gay one in the same way a few famous mothers have kept their children away from fathers they accused of sexual abuse. But being gay is nothing like being a child molester.

At this point, nothing can undo what Lisa Miller has done to her child and to the woman she once pledged to love til death parted them. She has made a very uncomfortable bed for herself and for her child, who is now assured of never having both her parents. Because either she will be kept away from Jenkins or Jenkins will prevail, which will most likely mean that Miller goes to prison. And all this why? Because gays are dirty sinners. And, hey, the laws of this land tell us it's ok to treat them as second-class citizens who can legitimately be ostracized and excluded.

Well, this isn't ok. Lisa Miller and all the people who have helped her should be ashamed. They should be convicted of felonies. It doesn't infringe on Miller's religious liberty for a court to order that Jenkins should have access to her child. It is way past time that we stop treating that as a legitimate argument, that we stop treating matters of legal equality as issues of religious freedom. And if Miller's concern is that she doesn't want her child to be raised by a sinner, maybe she'd better take a long, hard look in the mirror.

Sunday, August 5, 2012

I am not a big fan of ballot initiatives and most state constitutional amendments. (I'm an even bigger opponent of federal constitutional amendments as a general rule, but those don't come up very often (as was the plan), so I don't tend to stew about the damn fool ideas that are proposed as amendments.) I don't think direct democracy is the most workable idea for a large population. California is the perfect example of how horribly it can go wrong. That state's ridiculous ballot initiatives are bankrupting it.

My general rule is to vote against ballot questions, just on principle. In my view, constitutional amendments should be very few and very far between, reserved for only the most essential things. Most things are better dealt with by legislation, which offers more flexibility for addressing unintended consequences or problems in application. I would certainly never vote for a constitutional amendment if I didn't know the exact language I was voting for.

My biggest beef with ballot measures is that most people don't know what they're voting for. Take for example Missouri's current Amendment Two. It's being called the "Right to Pray" amendment. Proponents are touting it as something that will protect religious liberty in the public square. And if all anyone ever read was the language that will appear on the ballot, they may fall for that and vote in favor. Because the proposed language that would actually be added to the state's constitution if the amendment passes does not appear on the ballot. Instead, all that appears is a ballot question that reads like the blurb on the back of a book.

Here is what will appear on the Missouri ballot:

Shall the Missouri Constitution be amended to ensure:
That the right of Missouri citizens to express their religious beliefs shall not be infringed;
That school children have the right to pray and acknowledge God voluntarily in their schools; and
That all public schools shall display the Bill of Rights of the United States Constitution.
It is estimated this proposal will result in little or no costs or savings for state and local governmental entities.

Fair Ballot Language:
A "yes" vote will amend the Missouri Constitution to provide that
neither the state nor political subdivisions shall establish any
official religion. The amendment further provides that a citizen's right
to express their religious beliefs regardless of their religion shall
not be infringed and that the right to worship includes prayer in
private or public settings, on government premises, on public property,
and in all public schools. The amendment also requires public schools to
display the Bill of Rights of the United States Constitution.
A "no" vote will not change the current constitutional provisions protecting freedom of religion.
If passed, this measure will have no impact on taxes.

Seems fairly harmless, right? From this, you would have no idea that a yes vote would actually add 400 words to the state constitution and assuredly cost the state hundreds of thousands of dollars in dealing with the inevitable lawsuits. Honestly, it ought to be illegal for a ballot to contain anything less than the full and complete amendment being voted on. Mailers sent to voters either for or against the amendment should also be required to contain the full language. Heck, I had to look a little to find a link to the language even in a news story or on the Missouri Secretary of State's website.

Missourians will vote on this on Tuesday. I'm expecting it to pass because it's got such a catchy nickname. But I have no confidence that the people who will be voting to amend the state constitution have any idea what they're getting themselves into.

Friday, August 3, 2012

Drew Peterson is this week on trial for murder in the state of Illinois. But the trial feels like a mere formality, because he was convicted in the court of public opinion so very long ago.

Peterson is a retired cop who became a household name in 2007 when his fourth wife (a woman less than half his age and seemingly out of his league in the looks department) disappeared without a trace, leaving her two young children behind. As Stacy's disappearance became the missing white woman story of the month, a picture began to emerge of Peterson. A very ugly picture. He was cruel, abusive, controlling. Threatening. Stacy had been frightened for her life, had been planning to leave him, had been terrified about what and happened to wife #3.

Peterson's third wife, Kathleen, had died three years earlier, after the two had been embroiled in a bitter divorce, complete with custody battle. Kathleen's death had been ruled an accidental drowning and the case closed. Until Stacy disappeared and the idea took hold that Stacy had been killed by her husband because she knew too much about what had really happened to Kathleen.

The investigation into Stacy's disappearance became an investigation into Kathleen's death. Her body was exhumed, the initial autopsy reports reconsidered. The original police investigation was called into question with hints that the blue wall had helped Peterson get away with murder. He had been at her house when Kathleen's body was found, but had sent his companion upstairs to look while he searched the downstairs. Had he done this knowing what the companion would find upstairs? How had Kathleen drowned in a dry bathtub? Had she really been dead so long that all of the water could have drained away?

Sure enough, the new investigation concluded that Kathleen's death had not been an accidental drowning, but had been a homicide and Drew Peterson was charged in her murder. By this time, years had passed since his story had first reached the national stage. Hundreds of news stories had been published, complete with pictures of Peterson and his new girlfriend (was she even younger than Stacy?) and tales of his menacing behavior over decades. Generally, websites choose which pictures to use based on which picture best fits their narrative, so as the stories focused on Peterson's deplorable behavior toward the women in his life, his threats and intimidation, his near-certain involvement in the deaths of two of his wives, the pictures of him fit that narrative. He was often described as looking smug, arrogant, mean, murderous.

And then there was the tv movie. The movie was made long before a jury was ever selected to hear the actual, legal evidence against him in a court of law. I haven't actually seen that movie, but it's my understanding that Rob Lowe did not portray Peterson as a misunderstood, giant cuddly teddy bear of a guy.

One other twist that may have gone unnoticed by a lot of people is that the Illinois legislature actually passed a new statutory rule of evidence because of Peterson's case. (Most rules of evidence are statutory.) The prosecution had long had witness statements from people close to Stacy who reported she had told them Peterson had admitted to killing Kathleen. In 2004, the United States Supreme Court issued a landmark new ruling on the Confrontation Clause and lower courts are still now addressing the limits and ramifications of that ruling. One key area of debate was the continued viability of a doctrine called forfeiture by wrongdoing. Simply put, the idea is that a defendant cannot complain about his inability to cross-examine a witness if he himself is the reason that witness is unavailable. The Illinois legislature passed a statute on forfeiture by wrongdoing because of the Peterson case.

So after all that, after years of Nancy Grace coverage and tabloid stories and a tv movie and a new statute, this week, the state of Illinois finally proceeded with opening statements in the case of the State v. Drew Peterson. Web commenters from all over seem to think its a foregone conclusion that he is guilty. This trial is a formality, and one that, frankly, a lot of people think we should dispense with. I mean, after all, the guy is so obviously a murderer. Why, just look at his pictures!

What has become apparent through the first days of trial, sadly, is that the prosecutors also view this trial as nothing but a show with a foregone conclusion. Already, they have committed two egregious instances of misconduct. In opening statement, the time when the prosecution is supposed to lay out for the jury what the evidence will be, the prosecutor told the jury that Peterson had offered someone $25,000 to murder his wife. But that hearsay evidence is not admissible at trial, so the prosecution should never have mentioned it. The prosecution either knew or should have known that this allegation would not be allowed in front of the jury, but they mentioned it anyway.

The prosecution also didn't care that they weren't supposed to mention a neighbor's allegation that Peterson had shot a bullet into his driveway to scare him. The neighbor hadn't seen Peterson do this. Just found the bullet in his driveway and believed Peterson had been behind it. Well, that doesn't meet any standards for admissible evidence, either. But they mentioned it anyway.

On Thursday, the judge overseeing this trial refused to grant a mistrial. Instead, the judge will admonish the jury to disregard the two giant elephants the prosecution trotted out in front of them. And he will sternly wag his finger at the prosecutors. The trial will go on and jurors being human will not be able to put those elephants out of their minds and Peterson will be convicted and the prosecutors will face no consequences and the conviction will be upheld on appeal because appellate courts operate in a fantasy land where jurors always follow their instructions, no matter how often they tell us they don't or how physically impossible it is to do so. Sure, jurors who are now weighing whether this man has committed murder, just put these two specific but utterly unsupported allegations of him threatening people out of your mind as you judge his guilt or innocence. 'Cause that'll happen.

What I find so utterly disheartening about this is that not even the prosecution or the district court judge really care about making sure this man, who everyone decided was guilty 5 years ago, actually receives a fair trial. A proper consideration of the substantive evidence. Nope. Based on the prosecution's blithely introducing allegations it knows aren't admissible and the district court's wagging a finger while turning a blind eye to that misconduct, it's clear they're only interested in providing a show trial.

Thursday, August 2, 2012

The world of film critics have finally, FINALLY, acknowledged that a film by Alfred Hitchcock is better than the only Orson Welles film anyone can remember. Vertigo has finally made it to the top of the list of the greatest films of all time, according to the poll conducted by Sight and Sound magazine.

I'll be honest. I've never cared for Citizen Kane. I think the acting is atrocious and the story isn't all that inventive. But Orson Welles always gets mad credit for his innovation, for creating all these techniques that no one had ever done before. And it makes me crazy.

I grew up in a household that worshipped at the altar of Alfred Hitchcock. Sure, he's a creepy misogynist with serious mommy issues. And he was kind of a jerk to his actors. But the man knew how to put a movie together. He did it not just for a few films, but for decades. Just think about all of the Hitchcock movies that come to the top of your head. And they're all great films. North by Northwest. Rear Window. Psycho. Notorious. Dial M for Murder. Strangers on a Train. A lot of Hitchcock lovers will tell you that Vertigo isn't even his best film. My dad introduced me to all of these movies, and a whole lot more.

So it has always irked me that Welles and Citizen Kane have been revered as this genius director with this incredible, no-one's-ever-done-it-before type film when Hitchcock was doing the same types of things. The deep focus shot that everyone credits Welles for? Hitch was doing it, too. In a film that I'd sure as heck watch over and over rather than ever watch CK. That'd be Rebecca, a beautiful film. Filled with acting that doesn't make me cringe.

In his lengthy career, spanning decades, Hitchcock never won a best director Oscar, which is a sin and a shame. Despite his beautiful 360 degree kiss shot between Cary Grant and Ingrid Bergman in Notorious. Or the amazing tracking shot from that movie where the camera pans down throughout the entire party down to show the key in Ingrid's hand. Or the walk down the stairs with Grant, Bergman, and Claude Rains. Or the walk up the stairs and the use of shadow as Cary Grant brings what may or may not be poisoned milk to the desperately ill Joan Fontaine in Suspicion. Or the closed set in Dial M for Murder that no other director could have pulled off. Or the brilliant 11 minutes of Vertigo that pass without any dialogue without the viewer noticing because the action of Jimmy Stewart following Kim Novak is so compelling.

Based on the breadth and depth of his work, from the classic horror film of The Birds to the black comedy of The Trouble With Harry to his personal favorite Shadow of a Doubt (featuring a very young Macdonald Carey, of Days of Our Lives fame), he made great film after great film from the 1920s until the 1970s. (Have I mentioned Frenzy yet? Check that one out!) Back in college, I was so excited when our college movie program showed The Man Who Knew Too Much. My bff wasn't so sure she was interested in watching it, but it was clearly important to me, so she grudgingly agreed to go, with the caveat that she would leave after the first hour if she wasn't feeling it. After 20 minutes, I knew she was hooked. But smart aleck that I am, I still had to lean in at the hour mark and whisper that she could leave now. She didn't even look at me as she shushed me. You can't leave a Hitchcock halfway through.

Which is why I'm so thrilled today to see that the greatest director of all time with the greatest body of work ever put out by one filmmaker has finally been recognized for his greatness. Congrats, Hitch, you creepy, vaguely stalker-ish, dirty, brilliant man.

Wednesday, August 1, 2012

One of my biggest pet peeves (re: criminal law, anyway; I have lots of pet peeves, so must categorize) is the irresponsible way journalists report on criminal sentences.

Generally speaking, when people in this country are convicted of murder, the most common sentence is life in prison. Also generally speaking, most life sentences carry with them parole eligibility. In the state of Kansas, parole eligibility can come at 20 years, 25, 40, or 50. And there are also sentences of life without the possibility of parole (LWOP), but in Kansas, those are only available to defendants over 18 who are convicted of capital murder, so very few defendants get that sentence.

What makes me crazy, though, is that far too many reporters tell the public that the defendant has been sentenced to "20 to life." Or sometimes, it's even worse. Tonight, I saw an article on the murder of the young boy in Brooklyn from last summer. According to the article, the parties are reaching a plea agreement that would subject the defendant to "40 to 60 years in prison." Gah! It didn't take me long to find the New York penal code and verify that murder in New York carries a sentence of life in prison. I seriously doubt the plea agreement involves some lesser offense that would carry a determinate sentence of a set number of years. So as CBS's New York affiliate is indicating, the sentence would really be "40 to life." Which, given the choices of phrasing, is clearly the better way to report on the plea agreement because at least it incorporates the life part rather than implying the sentence would be a fixed term of years.

Honestly, how hard is it to report accurately on sentencing? Maybe it's a few extra words, but I think the accuracy is worth it. It's a life sentence with parole eligibility after 40 years. So it's not that he will get out in 40 years. It's that he could not conceivably get out for at least 40 years, and even then he would have to convince a parole board that he should be released even though he dismembered an 8 year old boy. And it's a good bet that a prosecutor will be there at the parole hearing, ready to show the board members pictures.

Conceptually, I understand why people think of it as a "40 to life" sentence. But I think it takes a way a bit from the understanding that the sentence is life in prison and that the number of years isn't the presumptive out date, but simply the first time anyone would even consider releasing the guy. I would certainly never want one of my clients to operate on the misguided assumption that his life sentence is really just a 25 year sentence. The public shouldn't have that misconception, either. So journalists should really report correctly.